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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Tony Ray WINN, Defendant-Appellant.

CR020492DV;  A121597.

Decided: May 13, 2009

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge. James N. Varner, Dundee, for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, for respondent.

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Winn, 208 Or.App. 755, 145 P.3d 336 (2006) (Winn I ), in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008), and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007).  State v. Winn, 345 Or. 317, 195 P.3d 64 (2008).   In Winn I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on judicial factfinding.   That factfinding constituted plain error, and we exercised our discretion to correct it.   The issue before us on remand is whether, in light of Ramirez and Fults, we properly exercised our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991).   We conclude that our exercise of discretion in Winn I was erroneous.   Accordingly, we affirm.

 Defendant was convicted of attempted murder, second-degree kidnapping, two counts of harassment, and four counts of fourth-degree assault arising out of his prolonged attack on his female domestic partner.   The trial court imposed a durational departure sentence of 18 months' imprisonment on one of the fourth-degree assault convictions.   The court gave the following reasons for its imposition of the departure sentence:

“1. Persistent involvement unrelated to the current crime;  and

“2. Defendant on supervision status at the time offense committed.”

The trial court did not explicitly state that it was relying on the departure factors it found either singly or in combination, and therefore we assume that the court did not consider each factor to be independently sufficient to support a departure.  State v. Wilson, 111 Or.App. 147, 826 P.2d 1010 (1992).   Thus, remand for resentencing may be warranted if one of the factors relied on by the trial court is subject to legitimate debate.   See Ramirez, 343 Or. at 513, 173 P.3d 817 (setting out “legitimate debate” standard for exercise of discretion to review unpreserved  challenges to departure sentences based on judicial findings of fact).

 On the first departure factor, defendant's persistent involvement in similar offenses, as we explained in State v. Williams, 225 Or.App. 325, 328-29, 201 P.3d 267 (2009), under State v. Bray, 342 Or. 711, 724, 160 P.3d 983 (2007), there is no legitimate debate that a jury would have found a defendant to have been persistently involved in similar offenses where the number and frequency of the defendant's prior convictions compel the inference that his or her criminal behavior has been “persistent.”   Here, defendant had two prior convictions for assault in 1999;  defense counsel admitted at sentencing that defendant had those convictions and that they could support a departure sentence, but argued that only two convictions were not enough to qualify as “persistent.”   On this record, we conclude that there is no legitimate debate that the jury would have drawn the inference required by Bray-defendant had two prior convictions for assault and was convicted in this case of four counts of assault.

 With regard to the second departure factor, defendant's post-prison supervision status at the time he committed his current offenses, as we explained in State v. Allen, 198 Or.App. 392, 396, 108 P.3d 651, adh'd to as clarified on recons., 202 Or.App. 565, 123 P.3d 331 (2005), rev. den., 342 Or. 46, 148 P.3d 915 (2006), an upward departure sentence based on a defendant's supervisory status “requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent.”   Here, defendant-while on probation-repeatedly punched his female domestic partner in the face and back, strangled her with a rope, and told her (as recited by the prosecutor at sentencing and not contested by defendant), “I am going to kill you.   I'm not afraid to go to jail for the rest of my life, because I would rather see you dead.”   On this record, we conclude that there is no legitimate debate that the jury would have drawn the inferences of malevolence and failure to be deterred required by Allen.   Accordingly, we decline to exercise our discretion to review the assigned error.